35 THE LEGAL FRAMEWORK
or uses. However, it is the NHS Trust or health authority that usually has
ownership and copyright of these records (NHS Executive 1999). Chief
executives and senior managers in these organisations are personally ac
-
countable for the quality of the systems for managing records.
What does accountability mean for the clinician?
°
Clinicians are responsible for the professional opinions they
have written in the health record.
°
Health records remain the property of the employing body,
so records remain within the organisation and do not move
with the health professional.
°
Clinicians must make sure that they know, understand and
adhere to their employer’s guidelines on information
management.
°
Clinicians must make sure that they know, understand and
adhere to the guidelines issued by their professional body on
information management.
°
Clinicians who are also line managers are responsible for
making sure that their staff are adequately trained in
information management and adhere to the guidelines.
2. Use and protection of client information
A clinician has always had a common-law duty of confidentiality to his or
her clients. In addition health records are covered by the Data Protection
Act (1998), which stipulates that all processing of data must be fair and
lawful within the context of common law. Therefore clinicians, NHS or

optimum health care to the client. However there are a number of other
important uses that include ensuring effective health care administration
(for example, clinical audit and risk management), teaching and research.
The Department of Health recommends that clients are told how in-
formation might be shared before they are asked to provide it. This might
be through the use of general information contained in leaflets and specific
discussions between the client and the clinician as part of joint care plan-
ning.
However, it is recognised that in health care it would be impracticable
and unnecessary to obtain the client’s specific consent each time informa-
tion needed to be passed on. Health professionals must be able to respond
to the needs of clients promptly. Personal health information needs to be
readily available so that the most appropriate and effective care is deliv
-
ered. Therefore health organisations need to advise clients that their per
-
sonal information may need to be shared amongst health staff and with
associated agencies, in order to plan and co-ordinate care.
The client has a right to refuse permission for information to be passed
on (subject to the exceptions detailed below). Clinicians will need to re
-
spect the wishes of the client in such cases. However it is important that cli
-
ents are made aware of the likely implications of this decision for their own
health care and the impact on effective management of health services in
general.
Children and young people
There is often some confusion regarding the rights of children and young
people with regard to consent and confidentiality when receiving health
care.

precedence (the Children Act 1989). It may therefore be
necessary to share information with specific professionals and
agencies.
°
Where information needs to be released in order to protect
the general public. This often relates to the prevention of
serious crime but can include such matters as a public health
risk.
What does use and protection of information mean for the clinician?
°
Clinicians need to safeguard information provided by clients
in the course of receiving health care:
°
Manual records
This means keeping records in a secure place with access
only by authorised personnel, and avoiding accidental
38 WRITING SKILLS IN PRACTICE
disclosure by not leaving written notes unattended or in
view of others. Any unwanted paperwork containing
personal details about clients must be disposed of using
processes that protect confidentiality. This would normally
be by shredding or incineration of the records.
°
Data on computer
Clinicians should not reveal any information that might
compromise the security of a computerised records system.
For instance, they should not reveal passwords or allow
others access to the computer under their identity and
password. Care should be taken that computer screens are
not left unattended or in view of public areas.

Clinicians must obtain the specific consent of clients for any
research or teaching that would involve them personally.
39 THE LEGAL FRAMEWORK
°
Clinicians need to ascertain, when sharing information about
clients with other professionals, that they have the same
requirements regarding confidentiality (Shaw 2001).
3. Access to health records
Clients have had the right to have access to automatically processed health
records since the first Data Protection Act in 1984. This has now been re
-
placed by the Data Protection Act (1998), which came into force on 1
March 2000. This Act permits access to all manual and electronic health
records regardless of when they were created. It should be noted that this
Act also repeals the Access to Health Records Act (1990), except for provi
-
sions concerning the deceased. (The 1990 Act gave individuals the right
of access to health information processed manually about themselves from
1 November 1991.)
Clinicians need to note the following provisions of the 1998 Data
Protection Act:
°
The Act covers both manual and electronic health records.
°
Most NHS information (except anonymised information) will
be covered by the Act.
°
The Act permits access to manual records whenever they
were made (subject to certain exceptions detailed below).
There are certain circumstances when access may be limited, for example:

Clinicians may still allow informal access to records if
appropriate (subject to their organisational guidelines), and
where any third party information is not likely to be
compromised. Sharing of health records with the client is
recognised as good practice and is one way of involving them
in the health care process. Patient-held records are already
used in some areas of health care.
°
Health records must be written in the anticipation that clients
may exercise their right of access.
°
Clinicians will be involved in discussions about formal
requests for access and whether any limitations might need to
be applied.
°
Clinicians may need to prepare an extract from the records or
be available to discuss information with the client.
4. Retention of health records
There are recommended minimum periods of retention for health records.
The length of time varies according to the type of record. There are three
types of document – primary, secondary and transitory.
Primary documents would include casenote folders, client identifica
-
tion information, admission sheets, referral letters, case history sheets, as
-
sessment or examination information, progress notes, operation sheets,
nursing careplans, therapy notes, reports and anaesthetic sheets.
41 THE LEGAL FRAMEWORK
Primary documents have to be retained for a legal minimum period
(NHS Executive 1999):

All other records not covered above must be retained for a
period of ten years (NHS Executive 1998).
Secondary documents (for example x-rays and drug sheets) and transitory
documents (for example blood pressure charts) are retained for periods of
time determined by locally agreed policies.
What does retention of health records mean for the clinician?
°
Records, even damaged ones, must be retained for the
recommended minimum periods.
°
Clinicians should familiarise themselves with the employer’s
system for managing records of clients where the duty of care
has been discharged.
42 WRITING SKILLS IN PRACTICE
°
Clinicians should acquaint themselves with the recommended
periods of retention of health records and other documents.
For instance, diaries, annual leave requests and job
descriptions are just some of the documents covered by the
regulations.
Summary Points
°
All health records are deemed public records. Health
professionals are responsible for the records they
create and use, but the NHS Trust or health authority
usually has ownership and copyright of these records.
°
All health professionals have a common-law duty of
confidentiality and are bound by professional and
ethical standards of confidentiality.

on investigations, diagnosis, care and intervention.
A complete record will also include the views of the client and family
in addition to those of the health professional. There will be an account of
the client’s and the family’s understanding of and reaction to the present-
ing problem. It will also give a description of their wishes, responses to and
participation in the delivery of care and treatment.
Record keeping skills
Health professionals are personally accountable for what they have written
in health records. With the increase in litigation it is more important than
ever that clinicians ensure that records are complete and comprehensive.
For instance, records are one way that competent practice may be demon
-
strated when a client has complained (Fisher 2001). Record keeping skills
must therefore be seen as an essential clinical skill.
The ability to record, interpret and disseminate written information
about a client, like any other clinical skill, is essential. Record keeping
skills must:
°
form a fundamental component of pre-qualification training
°
be considered part of professional development and undergo
the same scrutiny as other clinical skills and knowledge
43
44 WRITING SKILLS IN PRACTICE
°
be considered one of the essential elements of clinical practice
and therefore be regularly reviewed by the reflective
practitioner
°
be included in clinical audit so that standards of recording are

-
ample clients may fail to attend. Always record the reasons why a planned
contact has not taken place. The same rule applies to indirect contacts. For
example, make a note of any attempts to liaise with other professionals
even if you are unable to get in touch with them. This provides evidence of
not only your intended actions for that client, but also the reasons why
these may not have been fulfilled.
45 RECORD KEEPING
Always date and sign each entry regarding a contact. It is also advis
-
able to record the time, especially if you make a series of direct or indirect
contacts with a specific client on the same day. This helps to show the de
-
velopment of events, often a critical issue in litigation cases.
Give the name of the location where the client was seen, for example
on a home visit, as an out-patient or in the community clinic. Include the
name of the hospital or clinic.
What do I need to record?
A complete health record will provide the reader with all the information
required to reach the same conclusions as the health professional who
wrote the notes. There should be no need to refer to other sources.
The type and amount of information noted would be determined by
the clinical need of the client, and the context in which the client is seen.
For example, documenting an acute episode would vary from the
on-going documentation required in a long-stay care facility.
The position of the client along the care pathway will also have a bear-
ing on deciding the content of notes. The main stages in the health care
process are:
°
referral

client records they are using.
Identification details
Each health record must contain the personal details that will enable the
identification of the client to whom the information pertains. This will
usually include the client’s:
°
names (at least the first and the last name)
°
title (Mr/Miss/Mrs/Dr)
°
form of address preferred by the client (for example, first
name or title with last name)
°
address
°
telephone number
°
date of birth
°
identification number (for example NHS number, social
security number, number issued by health provider).
Other relevant information would include:
°
the name and address of the next of kin/carer/guardian
°
preferred form of address for the next of kin/carer/guardian
°
name and address of the client’s general practitioner
°
details of other professionals in regular contact with the

reports accompanying referral.
Initial assessment
Assessment is a process that will involve gathering information through in-
terview, observation, clinical investigations and objective and behavioural
tests. The type of information collected will relate to the theoretical ap-
proach of the record’s user (Pagano and Ragan 1992) – so the assessment
process of a medic will differ from that of a nurse, and both will differ from
that of a therapist.
It is essential that, whenever possible, consent is obtained from the cli
-
ent before assessment is initiated. This consent must be informed and the
clinician has the responsibility to make sure that the client understands the
nature of any assessment procedures, their purpose and any risks. Consent,
whether it is given verbally, in writing or by implication, must be recorded
in the notes. See the section in this chapter on ‘Writing a Careplan’ for a
fuller discussion on recording consent and communicating risk.
In general, the type of client data that is collected in assessment will in
-
clude information about:
°
physical signs, symptoms and behaviours that indicate the
client’s current health status
°
current health care (for example information on medication,
other illnesses)
48 WRITING SKILLS IN PRACTICE
°
psychological factors (for example mood and client’s response
to the problem)
°

to establish the need for intervention and prioritise individual
clients within the general caseload
°
to help plan intervention and set realistic outcomes
°
to help plan for discharge.
à
To identify the health problem, formulate a diagnosis and
determine the likely prognosis.
Taking a case history is an essential first step in collecting relevant client
data. Information is usually provided directly by the client, but in some cir
-
cumstances another may give it, such as a parent or friend. In the latter
case, always record the name and relationship of the informant to the cli
-
ent.
49 RECORD KEEPING
Write a description of the problem using the client’s own words. Note
the way in which it first became apparent to him or her and the develop
-
ment of the problem. The onset and sequence of symptoms need to be
dated as accurately as possible. Establish whether the problem has changed
in character or severity, and note any circumstances that are associated
with these changes – also, what does it mean for the client, impact on life
-
style, degree of pain and so on.
The information provided in the case history will be supported by
your clinical observations, and by objective or behavioural tests that help
to describe and quantify the presenting problem. This information is the
evidence on which your clinical decision making is based and must be

50 WRITING SKILLS IN PRACTICE
unsuccessful. This will show when and how you have
attempted to act upon the information you have gained about
the client’s clinical need.
°
Details of any further assessments with a plan for when and
how these will be carried out.
à
To provide a baseline measure for evaluating progress.
Your assessment will provide detailed information on the current health
status of the client. This will then form a benchmark against which change,
whether this is progress or deterioration, can be measured. Future users of
the personal health record must be clear about:
°
your actions (assessments, investigations and so on) along
with the date
°
the results
°
your interpretation of these results
°
your clinical decisions based on that interpretation
°
your actions based on those decisions
°
your recommendations for future management.
This information will help focus subsequent examinations and investiga-
tions, thus facilitating continuity of care. It also helps prevent needless rep-
etition of investigations.
à

Assessment must be both comprehensive and complete in order to plan ap
-
propriate and effective intervention. Information that will help you make
judgements about the predicted or likely outcome of any intervention in
-
cludes:
°
any factors in the client or the client’s environment that may
hinder change or perpetuate the problem (these may need to
be addressed prior to or as part of any planned intervention)
°
factors indicating the potential for change:
°
the client’s likely compliance (including motivation)
°
factors that might impact on the client’s ability to achieve
outcomes, for example age, cognitive, sensory and
educational abilities
°
the support available to the client in achieving outcomes
°
the client’s previous responses to intervention (What has
worked before? What problems have occurred?)
°
the limitations placed on the client’s lifestyle and quality of
life by their health problem
°
the client’s health education needs.
à
To help plan for discharge.

°
the results of these tests, investigations and procedures
°
diagnosis (and prognosis where applicable)
°
actions arising out of the assessment (for example referral
elsewhere, advice, waiting list for treatment)
°
identification of the type and extent of clinical intervention
°
prioritisation information
°
plans for future management that include a date for review
°
the client’s views and concerns regarding the above
information
°
the name and position of the clinician who evaluated the
client.
Key documents to be kept on file at the assessment stage:
q
a case history form or admission sheet
q
forms or charts used in tests, investigations or procedures
q
consent forms signed by the client giving permission for
investigations
53 RECORD KEEPING
q
a copy of any reports or letters circulated about the initial

or level of functioning
°
to increase the client’s knowledge and skills in coping with
the health problem
°
to support the client and the client’s significant others in
accepting and coping with the client’s health status or level of
functioning
°
to alleviate the psychological or physiological discomfort or
distress of the client.
Before commencing intervention you will have formed a plan of action
based on your reason for care, which needs to be noted in the client’s per
-
54 WRITING SKILLS IN PRACTICE
sonal health record. There are various ways of recording this information.
You may write it directly into the progress notes of the client’s personal
health record, or you may be required to complete a careplan. The latter is
often a standardised, pre-prepared document.
Care pathways (or clinical pathways) are a recent initiative to develop a
standardised multidisciplinary careplan that describes key interventions
along a timeline. They include expected outcomes and outline the main
stages in the clinical management of the client. Care Pathways are being
developed for specific procedures and client groups.
However, as a clinician you might also be involved in creating an indi
-
vidualised plan for the client, either because there is no documented path
-
way or the specific needs of the client require an individual management
plan.

will often involve negotiation and compromise by both you and
the client.
à
Make the goals realistic
Your choice of goals will be influenced by:
°
Your assessment of the client’s needs.
°
Your clinical experience – what you know has worked before
with other clients and how long it took to achieve it.
°
Evidence based practice – research will help you select
appropriate and efficacious treatment. Make use of care
pathways (or clinical pathways) whenever possible. They
have been developed by multidisciplinary experts using
sound scientific evidence.
°
Individual differences between clients. These factors will
mean that the type, amount and length of intervention will
vary between clients. For example, an elderly client may need
a longer timescale.
°
The environment – what are the opportunities and limitations
arising from the care environment, home or family situation?
For example, the development of independent living skills
may be difficult in a hospital setting where meals and so on
are provided.
°
The timescale – what is your estimate of the time needed to
achieve the goal? What amount of time is available to work

will depend on the client understanding and accepting potential
and actual risk. Such a discussion needs to be recorded in the
notes in order to provide the clinician with protection from any
future litigation.
Recording clients’ decisions regarding consent to treatment
It is essential that whenever possible, consent is obtained from the client
before the start of treatment. Consent, whether it is given verbally, in writ
-
ing or by implication, must be recorded in the notes. Your records also
need to show not only that the client consented but also that he or she was
capable of making this decision. The client must have sufficient informa
-
tion to consider the benefits and the risks of the proposed treatment in or
-
der to make a decision (Rodgers 2000). Consent must be informed.
It is the clinician’s responsibility to make sure that the client under
-
stands:
°
the nature of any procedures
°
the likely positive and negative outcomes
°
the risks.
Part of this explanation might include the option to ‘do nothing’ and the
associated benefits and/or risks. A record of the information given to the
57 RECORD KEEPING
client is therefore an important part of the health record and might be
-
come a vital factor if litigation arises.

Refusal of treatment
A refusal by the client of proposed treatment needs to be noted. This ap
-
plies whether it is the whole or only parts of the treatment with which the
client refuses to proceed. Record the reasons for refusal using the client’s
words wherever possible, and detail your advice to the client on the possi
-
ble risks or negative outcomes of his or her decision. This will provide evi
-
dence to help protect the clinician against any future litigation for
negligence. It will also provide useful information for other health profes
-
sionals on the client’s attitudes, beliefs and wishes.
58 WRITING SKILLS IN PRACTICE
Extraordinary circumstances, such as clients with ‘living wills’ or those
who have religious objections to certain medical procedures such as blood
transfusions, require special attention to record keeping. It is important to
check organisational and professional guidelines on procedures, which
should include directions about record keeping.
Difficulties in obtaining consent
In some cases there may be difficulties or barriers to communicating the
necessary information to clients. Examples might include clients with a
different language from the clinician, clients with a communication dis
-
ability following a stroke or clients with a hearing loss. It may be necessary
to use interpreters or advocates to help communicate information effec
-
tively about treatment options. Whatever method is used it is important
that the way in which the client’s consent was obtained is clearly recorded.
Clients who are not competent to consent

O
Client to try to walk for 10 minutes a day.
P
Client to walk for 10 minutes a day.
à
Focus on the desired behaviour rather than the undesired one
Again, an important consideration when careplans are shared
with the client.
For example:
O
Client to reduce stammering on telephone.
P Client to use fluent speech on telephone.
à
Make objectives measurable
Making an objective measurable provides you with a systematic
way of evaluating the result or outcome of your intervention. Use
specific statements in your objectives that contain information
about quantifiable behaviours to be observed in the client.
Springhouse (1998) suggests that such statements will include the fol-
lowing three key components:
°
an observable behaviour
°
a measure of that behaviour
°
the condition under which that behaviour will occur.
à
An observable behaviour
A behaviour must be observable in order that you can detect
change versus no change. Behaviours may be classified as: